319 



3 Esp. N. P. C. 83, where Lord Eldon is reported 

 to have said, " that he took it to be clear law, that 

 if a person purchased a horse which is warranted 

 sound, and it afterwards turned out that the horse 

 was unsound at the time of the warranty, the buyer 

 might, if he pleased, keep the horse, and bring an 

 action on the warranty, in which he would have a 

 right to recover the difference between the value of 

 a sound horse, and one with such defects as existed 

 at the time of the warranty ; or he might return 

 the horse and bring an actioUj to recover the full 

 money paid; but in the latter case the seller had 

 a right to expect that the horse should be returned 

 in the same state he was when sold, and not, by 

 any means, diminished in value ;" and " that if 

 it were in a worse state than it would have been, 

 if returned immediately after the discovery, the 

 purchaser would have no defence to an action for 

 the price of the article." " It is to be implied," 

 Lord Tewterden remarks, ^' that he would have a 

 defence in case it were returned in the same state, 

 and in a reasonable time after the discovery. This 

 doctrine has been adopted in Mr. Starkie's excel- 

 lent work on the Law of Evidence, part IV., 

 p. 645 ; and it is there said, that a vendee may, 

 m such a case, rescind the contract altogether, by 

 returning the article, and refuse to pay the price, 



